Gilson v. Gilson
| Decision Date | 27 April 1933 |
| Docket Number | No. 87.,87. |
| Citation | 166 A. 111 |
| Parties | GILSON v. GILSON. |
| Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Divorce suit by Ethel Raye Gilson against Harry W. Gilson, in which defendant filed a counterclaim. From a decree granting the petitioner an absolute divorce and alimony, defendant appeals.
Reversed.
Herbert Clark Gilson, of Jersey City, for appellant.
Charles F. Black, of Hackensack, for respondent.
This is a divorce case in which the wife brought suit based on the grounds of desertion and extreme cruelty and prayed the custody of their children and that the husband be compelled to support the children and herself.
The extreme cruelty alleged was that the husband made his wife the victim of his violent and ungoverned temper, calling her names and accusing her of unchastity. No physical violence is asserted or proved.
The desertion is alleged to have occurred in January, 1929, although the parties continued to live under the same roof up to and during the time of the hearing.
The husband denied the charges and counterclaimed alleging extreme cruelty on the part of the wife, consisting of her neglecting her children and the home and of her refusal to have sexual intercourse with him, commencing June 28, 1931, and her stating to him that she was in love with another man, that she hated the husband and would kill him if he did anything to her lover, and frequently threatening the husband with physical violence, so that his health became shattered and he was rendered unfit to earn a livelihood, etc.
The case was referred to an advisory master, who recommended a decree dismissing the husband's counterclaim and the granting of an absolute divorce to the wife on the ground of desertion, but awarded the custody of the children to the husband with the right of visitation by the wife, and awarded her alimony of $30 per week and a counsel fee of $450. The husband appeals from all parts of the decree.
The parties were married June 29, 1919. She was then nineteen years of age and acting as his stenographer. He was thirty-five years old. He was making about $16,000 a year in his business and established the family in a $34,000 home with servants and a liberal allowance to the wife, who had the privilege of drawing on his bank account.
In 1929 the depression overtook him, his income steadily decreased, he lost most, if not all, his savings, his account in his business became overdrawn, and he begged his wife to retrench. In May, 1931, she met a Dr. Cooper, a chiropractor and a married man. She seems to have been very much infatuated with him. She attended to buying the furniture of a summer cottage for him and had a key to his office. The husband discovered this and objected to her conduct. In spite of that she continued to meet Cooper. She admitted that Cooper called her at least once a week on the telephone, that she sat in a parked car on more than one occasion with him, that he kissed her and tried to hug her, and while the suit was pending she accompanied him to a Chinese restaurant at night. Four witnesses (some of whom are her own friends) testified that she had admitted she was in love with Cooper, and to one she said that she refused to have any sexual relations with her husband because that would be disloyal to her lover. Her neighbors testified that Dr. Cooper called at her home and remained an hour or more at a time.
The wife claimed that her husband's desertion occurred in January, 1929, when he left her room, removed his clothes to another room, and said he would have nothing more to do with her. She testified that since that time he has refused to have sexual intercourse with her, although she invited him to on six occasions.
The husband said they occupied the same room and continued to have sexual intercourse until June 28, 1931, when she requested him to leave her bed because he had a cold and his cough disturbed her and that when he sought to return about two weeks later, she refused to permit him to do so, and that since that time she has refused to have sexual intercourse with him.
The petitioner attempted to prove the alleged desertion by separation from bed and cessation of marital relations by a daughter who was ten years old at the time of the hearing and who gave very...
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